U.no.179/2006

On the basis of Articles 110 and 112 of the Constitution of the Republic of Macedonia and Article 70 of the Book of Procedures of the Constitutional Court of the Republic of Macedonia (»Official Gazette of the Republic of Macedonia«, no.70/1992), at its session held on 4 April 2007, the Constitutional Court of the Republic of Macedonia passed the following

1. (a) The decision for the adoption of the Statute of the Struga municipality no.07-4230/4 of 3 August 2006, and
(b) The Statute of the Struga municipality no.07-4230/3 of 3 August 2006 (“Official Gazette of the Struga municipality”, no.8/2006),
ARE REPEALED.

2. This decision shall generate legal effects from the date of its publication in the “Official Gazette of the Republic of Macedonia”.

3. Upon the initiative submitted by Stanislav Buklieski from Struga and Jonce Gikoski from the village of Mislesevo-Struga, the Constitutional Court of the Republic of Macedonia with its Resolution U.no.179/2006 of 15 November 2006 instigated proceedings for appraising the constitutionality and legality of the acts noted under a) and b) in item 1 of the present Decision, since there was a well-founded question as to their concordance with the Constitution of the Republic of Macedonia and with the Law on Local Self-Government.

4. At its session the Court found that the contested Decision on the adoption of the Statute of the Struga municipality number 07-4230/4 of 3 August 2006, adopted by the Council of the Struga municipality, contains 2 (two) articles:

Article 1 of the Decision envisages that the Statute of the Struga municipality, adopted by the Council of the Struga municipality at its session held on 3 August 2006, is adopted by this Decision.

Article 2 foresees that the decision enters into force on the eighth day of its publication in the “Official Journal of the Struga municipality”.

The Statute of the Struga municipality no.07-4230/3 of 03.08.2006 contains XII (thirteen) chapters, which are the following:

– Chapter I (One) regulates the basic provisions;
– Chapter II (Two) regulates the organisation and work of the municipal bodies;
– Chapter III (Three) regulates the organisation and work of the commissions of the Council of the municipality;
– Chapter IV (Four) contains provisions that govern the performance of the tasks according to the principle of subsidiarity;
– Chapter V (Five) establishes the individual acts;
– Chapter VI (Six) contains provisions in connection with the information of the citizens and free access to information of public character;
– Chapter VII (Seven) contains provisions that govern the exclusion of the public from the sessions of the Council;
– Chapter VIII (Eighth) governs the right and the manner to submit petition requests and proposals;
– Chapter IX (Nine) contains provisions relating to the public debates, polls and proposals by citizens;
– Chapter X (Ten) regulates the execution of the obligations from the defence field in a state of war;
– Chapter XI (Eleven) governs the manner of publication of the regulations of the Council;
– Chapter XII (Twelve) regulates the neighbourhood self-government; and
– Chapter XIII (Thirteen) contains provisions relating to the manner of changes and supplements to the Statute.

5. During the preliminary proceedings the Court established the following actual facts of the case from the documentation obtained from the adopter of the challenged acts:

From the report of the Statutory Commission no.10-3560/2 of 29 November 2005, it derives that it decided to establish a Proposed-Decision on taking up the adopting of a Statute of the Struga municipality upon the proposed text, by a Draft-Statute.

From the minutes of the Eighth session of the Council of the Struga municipality no.07-3434/2, held on 30 November 2005, it arises that the Proposed-Decision on taking up the adoption of a Statute of the Struga municipality, by a Draft-Statute, was among the other items on the agenda.

The Council of the Struga municipality, at its session held on 30 November 2005, adopted a Decision on taking up to the adoption of a Statute of the Struga municipality no.07-3434/4 of 30 November 2005 and at the same session a Draft-Statute of the Struga municipality was adopted.

The municipal administration of the Struga municipality announced a public debate on the Draft-Statute of the Struga municipality no.08-3434/5 of 30 November 2005.

The Statutory Commission of the Council of the Struga municipality, at its session held on 3 May 2006, determined the Proposed Statute of the Struga municipality upon the proposed proposed-text and suggested to the Council of the Struga municipality to adopt and pass the Statute of the municipality.

At the session of the Council of the Struga municipality held on 28 July 2006, the Proposed-Statute of the Struga municipality, and the Proposed-Decision for the passing of the Statute, were on the agenda but were not voted out, as seen from the minutes of the 13th session of the Council of the Struga municipality no.07-4070/2 of 28 July 2006.

With its Resolution no.07-4230/1 of 28 July 2006, the President of the Council of the Struga municipality scheduled the 14th session of the Council of the Struga municipality to be held on 3 August 2006 at 11 o’clock, and concomitantly the agenda was announced.

Following the insight into the records from the 14th session of the Council of the Struga municipality no.07-4243/2 of 3 August 2006, it is clear that the session was held on 3 August 2006, and it was attended by 26 out of 27 members of the Council. The first item on the agenda was a Proposed-Statute of the municipality. After the discussions regarding this item and following the conclusion of the discussion, the Statute was adopted by 17 votes “for”, 1 vote “abstained”, and no votes “against”. At the same time the Decision on the adoption of the Statute of the Struga municipality was adopted.

The Mayor of the Struga municipality, with a Conclusion to announce the Statute of the Struga municipality no.08-4422/1 of 4 August 2006, announced the Statute of the municipality and the same was published in the “Official Journal of the Struga municipality”, no.8/2006.

6. Pursuant to the Amendment XVI item 1 of the Constitution of the Republic of Macedonia, the local self-government is regulated by a law that is adopted with a two-thirds majority vote of the total number of representatives, whereby there must be a majority vote of the total number of representatives that belong to the communities that are not the majority in the Republic of Macedonia. The laws on local financing, local elections, municipal boundaries, and on the City of Skopje, are adopted by a majority vote of the present representatives, whereby there must be a majority vote of the present representatives that belong to the communities that are not the majority in the Republic of Macedonia.

In line with paragraph 1 of Article 7 of the Law on Local Self-Government, the municipality regulates the performance of its competences by the statute and by the other regulations.

Pursuant to Article 31 of the Law on Local Self-Government, the bodies of the municipality are: the council and the mayor.

Pursuant to Article 32 paragraph 1 of the same law, the council is a representative body of the citizens that decides within the frameworks of the competences of the municipalities.

Pursuant to Article 36 paragraph 1 item 1 of the Law, the council adopts the statute of the municipality and the other regulations.

Pursuant to Article 39 paragraph 1 of the same law, the sessions of the council are held upon need, but at least once every three months. In paragraph 4 of Article 39 it is noted that the date, hour and place of holding the sessions of the council, as well as the proposal for the agenda for work, shall be announced seven days at the latest prior to the date of the holding of the session, in a manner defined by the statute.

From the noted legal provisions it clearly stems that the Law on Local Self-Government points to define the competences of the municipality with its statute, then to define the bodies of the municipality, the manner of work of the council of the municipality, as well as its competence and the manner of scheduling sessions of the council.

Taking into consideration what has been noted, and in correlation with the enclosed written documentation, the Court judged that there was a foundation in the initiative to point out that the contested Statute of the Struga municipality was adopted in a procedure that is not in accordance with the provisions of the Law on Local Self-Government. Namely, apparent from the Resolution to schedule the 14th session of the Council of the Struga municipality no.07-4230/1, whereby the president of the Council of the Struga municipality announced the holding of the session, the date, hour, and place of its holding (3 August 2006, at 11:00 h.), as well as the proposal for the agenda published on 28 July 2006, it arises that it was not acted in line with Article 39 paragraph 4 of the Law on Local Self-Government and the announcement of the holding of the session as well as the agenda was not made seven days at the latest from the date of its holding, as required by the legal norm, which has an imperative character, but prior to the expiration of the envisaged seven days. Hence, there is a well-founded indication in the initiative that the Decision on the adoption of the Statute of the Struga municipality, as well as the Statute of the Struga municipality, question the legality of these acts, that is, their concordance with the provisions of the Law on Local Self-Government.

In the opinion of the Court the statement in the initiative that the Statute of the municipality was also adopted in a procedure that is in contradiction with the provision of Article 41 paragraph 3 of the Law on Local Self-Government, without the majority of the councillors that are representatives of the communities that are not the majority population in the municipality, is founded.

Namely, pursuant to Article 41 of the Law on Local Self-Government, the council may work if the session is attended by the majority of the total number of members of the council (paragraph 1). The council decides by a majority vote of the present members, unless otherwise defined by law and by the statute (paragraph 2). The regulations referring to culture, the use of languages and alphabets that are spoken by less than 20% of the citizens in the municipality, the establishment and use of the coat-of-arms and the flag of the municipality, are adopted by a majority vote of the present members of the council, whereby there must be a majority vote of the present members of the council that belong to the communities that are not the majority population in the municipality (paragraph 3).

As apparent from the Minutes from the 14th session of the Council of the Struga municipality, the first item of the agenda that was considered and discussed about was the Proposed-Statute of the Struga municipality. In the beginning of the holding of the session (as concluded in the Minutes) it was attended by 26 members of the Council (out of the total of 27 members of the Council), while it was not attended only by the member of the Council Tanas Trajkoski. However, in the stage of voting for the adoption of the Statute and the Decision on the adoption of the Statute, the members of the Council from VMRO-DPMNE, VMRO-NP, SDSM and LDP were absent since in the meantime they had left the session and the Statute was adopted with 17 votes “for”, 1 “abstained”, and no votes “against”, while the Decision on the adoption was passed with 17 votes “for”, and 2 “abstained”. From the insight into the list of councillors it is concluded that the total number of councillors, that is, members of the Council is 27, of whom 7 are Macedonians by nationality and are members of the political parties: 3 (three) from VMRO-DPMNE, 3 (three) from SDSM, 1 (one) from VMRO-NP, 18 are Albanians and 2 are Turks.

According to the Court, the Statute adopted at the 14th session of the Council of the Struga municipality, is a regulation that governs the issue for the determination and use of the coat-of-arms and the flag of the municipality, and may also govern the issue about the use of the languages and the alphabets in the work of the Council of the municipality which are spoken by less than 20% of the citizens in the municipality. This points to a conclusion, and pursuant to Article 7 paragraph 2 and Article 41 paragraph 3 of the Law on Local Self-Government, that the Statute, being an act of the municipality should be adopted in a procedure which should observe the rule about the presence and a majority vote of the present members of the council that belong to the communities that are not the majority population in the municipality.

However, as apparent from the Minutes of the 14th session of the Council of the Struga municipality, it is clear that 18 councillors voted at the session, 17 “for”, 1 “abstained”, no vote “against”, whereby the councillors, that is, members of the council that belong to the communities that are not the majority population in the municipality were not present, which is not in accordance with Article 41 paragraph 3 of the Law on Local Self-Government, and is pointed in the initiative in a well-founded manner.

Hence, the Court judges that in this concrete case the contested acts – the Statute of the Struga municipality and the Decision on the adoption of the Statute of the Struga municipality – are not in accordance with Amendment XVI of the Constitution of the Republic of Macedonia and with Articles 39 paragraph 4 and 41 paragraph 3 of the Law on Local Self-Government.

7. On the basis of the aforementioned, the Court decided as in item 1 of the present Decision.

8. The Court passed the present decision in the following composition: the President of the Court Mr Mahmut Jusufi, and the judges: Dr Trendafil Ivanovski, Mrs Liljana Ingilizova-Ristova, Mrs Mirjana Lazarova Trajkovska, Mrs Vera Markova, Mr Branko Naumoski, and Dr Bajram Polozani.

U.no.179/2006
4 April 2007
S k o p j e
lk

PRESIDENT
of the Constitutional Court of
the Republic of Macedonia
Mahmut Jusufi